Hogan's constitutional crisis

Our view: Whatever the courts may decide in a dispute over whether two cabinet secretaries can be paid, the legislature needs to close a loophole in the Constitution

The situation regarding two members of Gov. Larry Hogan’s cabinet is murky, indeed, with members of the executive and legislative branches of government accusing each other of violating the Maryland Constitution and the theoretical possibility that some poor bureaucrat in the comptroller’s office could face legal consequences for processing a couple of paychecks. A question of whether the Senate held up confirmation of Mr. Hogan’s choices to lead the departments of Planning and Health and Mental Hygiene because of partisanship or legitimate concerns about their qualifications has now morphed into an ugly fight about the separation of powers, with the rest of Annapolis rapidly being sucked into the vortex.

Both sides present some compelling, if unproven, arguments, and it is almost impossible at this point to see a resolution that does not involve litigation over an issue the average Marylander cares virtually nothing about. How that will be resolved, we can’t guess. But we can say that the situation exposes an evident loophole in the Constitution Governor Hogan is using to circumvent the Senate’s power to advise and consent to his nominees, and the legislature needs to close it.

A brief recap: After the legislature adjourned in 2016, Governor Hogan nominated Wendi Peters as planning secretary and Dennis Schrader as health secretary. Per the Constitution’s confirmation requirement, he forwarded their names to the Senate on the first day of the 2017 General Assembly session for consideration. The Executive Nominations Committee voted not to recommend Ms. Peters and had not scheduled a vote on Mr. Schrader when Governor Hogan, complaining about partisanship in consideration of those and other nominees, withdrew their names. The governor’s spokesman says Mr. Schrader in particular was being held up as a pawn in an unrelated issue about whether Anne Arundel Medical Center would be allowed to open a cardiac surgery program.

Surmising that Mr. Hogan might simply seek to re-appoint the pair after the session ended, the legislature adopted language in the budget saying that any individuals named as department secretaries during the 2016 interim who were not acted on by the Senate in 2017 could not be paid as of the start of the new fiscal year on July 1. The legislature had routinely employed similar language since 2004 under governors of both parties.

Mr. Hogan did, in fact, re-appoint both, and now, with the processing of the fiscal year’s first state government paychecks underway, Attorney General Brian Frosh has advised the General Assembly and others that the two may not be legally paid.

Comptroller Peter Franchot’s office, which manages the Central Payroll Bureau, says it will do its part to process the checks anyway. Given Mr. Franchot’s frequent cross-party alliance with Governor Hogan, that’s liable to raise some eyebrows, but we have some sympathy for his position. The payroll bureau acts on information from the Department of Budget and Management about who should be paid and how much, and it merely performs administrative functions such as figuring tax withholding and other deductions. The treasurer’s office has a similar function related to benefits. They are the collateral damage in this drama between the executive and legislative branches.

The legal arguments between the governor and General Assembly are complicated, but they boil down to a couple of questions. Did the governor have the authority to re-appoint Ms. Peters and Mr. Schrader, and did the legislature have the authority to withhold their salaries? No conclusive precedent settles either one, but an opinion from Mr. Frosh’s office says the answer to both is probably yes. The governor’s chief legal counsel counters that Mr. Hogan was within his rights to re-appoint the two but that the legislature overstepped its bounds in restricting their pay. The argument is essentially that the legislature cannot prevent someone who is legally appointed from getting the pay he or she has earned. At this point, we see no way around the courts settling the dispute.

However, Mr. Hogan’s action certainly violates the spirit of the Constitution, and if it is allowed to stand, it will render the requirement of Senate confirmation meaningless. The Constitution requires Mr. Hogan to submit the names of Ms. Peters and Mr. Schrader to the Senate for confirmation on the first day of the 2018 legislative session. He could withdraw both nominations immediately afterward, before the Senate has a chance to vote on either. Both would then serve in an acting capacity until the end of the session, at which point they could be nominated again.

Come what may in the legal battle, the General Assembly needs to amend the Constitution to close the Hogan loophole, perhaps by specifying that anyone whose nomination is withdrawn before Senate confirmation may not be reappointed to the same post for a year. If the governor believes the confirmation process has become too politicized, the answer is a political one, not an end-run around the Constitution.

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